The Persistent Public Health Emergency

Abstract

May 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outside the realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now that those measures have ended, evictions and residential utility shutoffs are again rampant, surpassing pre-pandemic levels in numerous places. For marginalized and minoritized communities that have long disproportionately experienced evictions and utility disconnections and their connected health harms, the health emergency persists.

This Article scrutinizes legal drivers of health outside of healthcare—specifically in the areas of housing and residential energy access—and applies the theoretical lens of health justice to glean lessons from legal interventions in those areas during and after the COVID-19 Public Health Emergency. Drawing upon the critical theoretical perspectives that a health justice analysis necessitates, it contends that as contagion risks represented an alignment of interests among those who have long been marginalized and those with more privilege, the country engaged in a significant experiment in a time of crisis—taking unprecedented action in halting many evictions and utility disconnections and providing historic levels of emergency rental and utility assistance. Although these measures had positive impacts, they were ultimately temporary and inadequate. Instead of seizing on the opportunities for more transformative reform that can arise from a crisis, such COVID-era measures failed to lead to a meaningful disruption of the status quo. This Article concludes by arguing that to achieve health justice, reforms must be sustained, structural, and led by the communities who endure daily the legally constructed public health emergency of health inequity.